Speech by Minister of Justice Ernst Hirsch Ballin on the EU Area of Freedom, Security And

Speech by Minister of Justice Ernst Hirsch Ballin on ‘The EU area of freedom, security and justice in the wider world: implementing the external dimension of the Stockholm Programme’

Ladies and gentlemen,

[Introductie]

The external dimension of the area of freedom, security and justice has entered a new phase. First and foremost, when the Treaty of Lisbon entered into force on 1 December last year, the European Union enlarged its scope for acting effectively on the international stage. Later that month the heads of state and government, meeting as the European Council, agreed to use this wider scope to step up external policy in the

field of justice and home affairs (JHA). And external policy forms an important part of the Stockholm Programme, the new multi-annualJHA programme that the Council adopted on 10 December.

This increased focus on the external dimension of JHA is in line with the historical development of foreign policy. Classic foreign policy is a matter of generals and diplomats. After the Second World War, however, the emphasis shifted to the economy, and to new players: entrepreneurs and negotiators. This coincided with the development of the European Economic Community and the internal market.

In the last decade we have seen the public take the stage in foreign policy.The individual as suspect, victim, migrant and litigant. The fight against international crime and terrorism and the management of migration flows have become central to international relations.

Just as the European internal market cannot function without an external trade policy, the area of freedom, security and justice cannot function without agreements and partnerships with third countries. These agreements and partnerships focus on issues like human trafficking, migration and counterterrorism. It has also become increasingly evident that our security in Europe is closely linked to stability, development, and the effective rule of law in countries outside the Union. Even if we didn’t believe that the EU has a moral duty to help other countries develop their economies and legal order, this is still in our enlightened self-interest.

This reality has long been recognised in JHA bodieslike the Strategic Committeefor Immigration, Frontiers and Asylum (SCIFA) and the Article 36 Committee (CATS). That is clear from the prominence of external relations in the Stockholm Programme and from the establishment of the JHA-RELEX Ad Hoc Support Group. But to really develop the external dimension of the issue of cross-border crime, we need to go beyond the limits of JHA. The issues that you will be discussing today should also be given a high profile in non-JHA bodies, like the European Council and Foreign Affairs Council. The objectives of the EU’s external dimension will largely need to be determined by the objectives of JHA.

To make it possible to tie JHA objectives to non-JHA dossiers, we need to look at how decisions are made regarding the external dimension of JHA. Which bodies and instruments are contributing in practice to our common struggle against cross-border crime?

You are all gathered here for workshops where you will discuss three priorities of JHA’s external dimension:

mutual legal assistance and extradition agreements with third countries;
combating illegal immigration;
data protection clauses in EU agreements with third countries.

I am eager to see what comes out of these workshops, and I’ll beglad to start the ball rolling.

[Kern]

As I said, now that the Lisbon Treaty has entered into force the EU has more scope to tackle cross-border crime. Not only did the European heads of state and government choose the first permanent President of the European Council on 19 November, and a High Representative for Foreign Affairs and Security Policy.But also, there are discussions now in the EU and the member states on setting up a Council standing committee on internal security. This so-called COSIwill be aimed at strengthening operational cooperation. In addition, a broader remit has been given to the existing bodies, such asthe various agencies involved with the external dimension of the Stockholm Programme.

All these bodies and instruments have a practical role to play in combating cross-border crime. My question is: can they also ensure that non-JHA bodies take up the goals set for JHA’s external dimension?

The role of several of these new bodies still needs to be fleshed out, and all sorts of discussions are currently under way. I would like to draw your attention to the role of the agencies, which I think is crucial in the fight against cross-border crime. It will come up in all three workshops, and is an interesting part of the new phase of JHA’s external dimension.

The agencies whose remits have been broadened by the Lisbon Treaty will have an increasingly important role, within Europe and beyond. Eurojust, Frontex and Europol were initially set up to secure, guard and protect Europe’s internal territory. But by the nature of their activities, these agencies have direct links with third countries and conclude agreements on the EU’s behalf.

Are their external missions in line with the parameters set by the Council? Are their mandates unambiguous? Can they link up with non-JHA dossiers? The European Council recently asked the JHA Council and the Commission to increase the coherence and complementarity between the political and operational levels of JHA activities. In other words, it wants these agencies’ operations to be brought more into line with the political parameters the Council has laid out. The necessary alignment with non-JHA dossiers can only be made once the agencies’ own objectives and methods are harmonised, strategically and operationally.

Obviously the member states are represented in this process via the College of Eurojust and the Frontex and Europol Management Boards. And the draft agreements are discussed in Council working groups and bodies like CATS, SCIFA, Coreper and of course the Council itself. This decision-making system is clearly laid down and observed in practice.

Ideally, negotiations with third countries should be held in the right order starting with taking stock of the Union’s needs. Next, the wishes of a third country are considered and a realistic report is made to the Council. This makes it possible to assess whether an arrangement has added value for the member states. In practice, however, this process is not always clear. It is influenced by political pressure and bilateral interests, and it is questionable whether enough emphasis is placed on assessment and comparison. By defining better the frameworks for the negotiating process, we could make negotiations between agencies and third countries more coherent. Of course the final result will always have to be tailored to the specific case.

In short, to develop the external dimension when it comes to human trafficking, migration, border controls and data protection, we need to answer two questions. First, how can we bring JHA operations more into line with our political objectives? And how can political connections be made with non-JHA dossiers?

[Mensenhandel]

Let me launch the discussion by focusing on one JHA priority that matters a lot to me personally: combating human trafficking. We cannot accept this modern form of slavery, which is often accompanied by threats and brutal violence. We need to do all we can tojoin up the different policy areas concerned with human trafficking and people smuggling. I think of visa and migration policy, prevention, law enforcement, information exchange, victim protection and JHA external policy. Of course, the Commission and the three agencies I mentioned have a role to play in all this.

The Commission will have to focus, at least in part, on EU support for media campaigns in third countries that point out the risks and dangers of illegal migration. Thanks in part to Dutch lobbying, the Stockholm Programme includes an invitation by the European Council to the JHA Council to consider appointing an EU Anti-Trafficking Coordinator.

We can strengthen cooperation between Europol and Frontex, for example, by having them draft joint risk analyses on human trafficking and people smuggling, with a focus on specific high-risk areas. Setting uprapid action teams would enable member states to support third countries’ work on migration management. In general, more attention should be paid in the external dimension of EU policy to cooperating with countries of origin, to human rights and to repatriation.

Eurojust, Frontex and Europol were all initially established to promote cooperation between the authorities of different member states. But they also have powers to make agreements with third countries. As long as these are working agreements on implementing existing policy, their consequences for the member states won’t be too great. But where more far-reaching agreements are concerned, the Union should always bear in mind that it is the member states that have to implement them. The Union should also be aware that agreements with third countries set precedents, and that the Union often sets global standards. Another interesting question is how the agencies’ broader remit will relate to the Commission’s increased powers to negotiate with third countries on the Union’s behalf.

Regarding this matter the Netherlands is working towards more clearly defined frameworks for implementing operations in order to increase coherence and complementarity. We are also supporting a more comprehensive approach to agreements with third countries.

[Food for thought]

In conclusion, I would like to give you some food for thought. The Lisbon Treaty has increased the institutional complexity of JHA. This means we need better coordination between the external relations of the Commission, the Council and agencies like Eurojust, Europol and Frontex. If they can wage a more coherent campaign against cross-border crime, other bodies like the European Council and Foreign Affairs Council can more easily adopt the JHA objectives.

With the Lisbon Treaty’s entry into force, both the agencies and the Commission have been given greater roles in JHA external relations. How do these agencies’ development and broadened remits relate to the Commission’s expanded role in the external dimension of JHA? How can we safeguard the coherence of these different instruments’ objectives and activities? The Netherlandsbelieves that the High Representative of the Union for Foreign Affairs and Security Policy can help coordinate the external relations of the Commission, the Council and the agencies. How might this coordinating role be shaped, especially as it is now clear that the European External Action Service will be a sturdy organisation in its own right?

How can JHA objectives be integrated into the EU’s external policy? Are JHA interests being adequately safeguarded, or is more investment needed in the political priorities? Such as identifying the Union’s needs, the relative importance of specific third countries and the added value of agreementsbefore negotiations begin?

Perhaps the greatest gains can be made by achieving greater uniformity in the agencies’ work and negotiating procedures. Although many different parties – member states, the Commission and the agencies – negotiate with third countries, the negotiations should all be organised in the same way. Each member state or agency can then flesh out the organisational framework on its own.

Another question: will the new standing committee – COSI – help address the lack of coherence in the external dimension, by functioning as a link between the Council and the agencies?

Ladies and gentlemen, I have thrown out many questions and given you a great deal of food for thought. The external dimension of JHA is a fascinating area. And an important one, especially if we want our fight against cross-border crime to be successful in the years to come.

I wish you a stimulating and instructive exchange of ideas in the workshops.

Thank you.